BOOK V. refund to the Company the money which he had thus illegally received. But he refused to acknowledge the majority as a council, and returned no answer.

1776.

Prosecutes
Nuncomar.

Nothing surely can be more inadmissible than the pretences of the Governor. General for stifling inquiry. What he alleged, was the dignity of the accused, and the baseness of the accuser. If dignity in the accused be a sufficient objection to inquiry, the responsibility of the leading members of every government is immediately destroyed; all limitation of their power is ended; and all restraint upon misconduct is renounced. If the character of the accuser is bad, so much the greater is the advantage of the accused; because so much the more easy it is to counterbalance the evidence of his testimony. So great may be the improbability of a charge, and so little the value of an accuser's testimony, that the first may outweigh the latter, and preclude the propriety of any further research. But where the case is in any degree different from this, the character of the informer is not a sufficient objection to inquiry. It is often from men of the worst character, that the most important intelligence is most likely to be received; and it is only necessary in receiving it to make those abatements of belief which the character of the informant may appear to require. The perpetual reference to the courts of law, as the only place where inquiry into the conduct of an officer of government could fitly be made, merits the highest disapprobation, The conduct of a member of government may be evil to almost any degree, may involve his country in ruin; and yet exhibit no particular fact which infers condemnation by a court of law. It is another species of superintendance and control which must ensure good conduct in those who are vested with great public trusts. In disclaiming the majority for his judges, the Governor availed himself of an ambiguity in the word. They did not undertake the office of judgment. They only held it their duty to inquire, for the benefit of those who might afterwards judge.

In this case, the Governor-General was not satisfied with crying out against inquiry. He took the extraordinary resolution of prosecuting with all the weight of his authority the man by whom he was accused. An indictment, at the instance of the Governor-General, of Mr. Barwell, of Mr. Vansittart, of Mr. Hastings' Banyan, and of the Roy Royan or head native agent of finance, was preferred against Nuncomar, together with Messrs. Joseph and Francis Fowke, for a conspiracy to force a man named Commaul ad Dien Khan, to write a petition against the parties to the prosecution. After an examination before the judges, Mr. Francis Fowke was discharged; and Mr. Barwell, the Roy Royan, and the Governor's Banyan, withdrew their names from the prosecu

"have

1776.

forgery, pro

guilty, and

tion. The Governor and Mr. Vansittart persevered; and Nuncomar and Mr. CHAP. II. Joseph Fowkes were held to bail at their instance. "The truth is, as we," says the minute of Clavering, Monson, and Francis, on the 16th of May, reason to believe, that there never existed such a paper as has been sworn to; and that every particular said to be contained in it is an imposition invented by Commaul ad Dien." A few days after this suspicious, but ineffectual proceeding, Nuncomar a new prosecution was instituted against Nuncomar. At the suit of a native, accused of he was taken up on a charge of forgery, and committed to the common gaol. nounced He was tried before the Supreme Court, by a jury of Englishmen, convicted, hanged. and hanged. No transaction perhaps of this whole administration more deeply tainted the reputation of Hastings than the tragedy of Nuncomar. Charged with a crime, alleged to have been committed five years before, at the moment when he stood forth as the accuser of the Governor-General, whose power to have prevented, or to have stopped, if he did not cause the prosecution, it is not easy to deny; his trial and execution could not fail to generate the suspicion of guilt, and of an inability to encounter the weight of his testimony, if the man had lived to support it. And as Hastings, aware of the sinister interpretations to which the destruction of an accuser in circumstances so extraordinary would assuredly expose him, chose rather to sustain the weight of those suspicions, than to meet the charges by preventing or suspending the fate of the accuser, it is a fair inference, though mere resentment and spite might hurry a man to as great an indiscretion, that from the accusations he dreaded something worse. Mr. Francis, in his examination before the House of Commons, on the 16th of April, 1788, declared that the effect of this transaction upon the inquiries carried on by the Board into the accusations against the Governor, was, “to defeat them; that it impressed a general terror on the natives with respect to preferring accusations against men in great power; and that he and his coadjutors were unwilling to expose them to what appeared to him and these coadjutors, as well as themselves, a manifest danger."

The severest censures were very generally passed upon this trial and execution; and it was afterwards exhibited as matter of impeachment against both Mr. Hastings, and the Judge who presided in the tribunal. The crime for which Nuncomar was made to suffer, was not a capital offence, by the laws of Hindustan, either Moslem or Hindu; and it was represented as a procedure full of cruelty and injustice to render a people amenable to the most grievous severities of a law with which they were unacquainted, and from which, by their habits and associations, their minds were totally estranged. It was

1769.

Book V. affirmed; That this atrocious condemnation and execution were upon an er post facto law, as the statute which created the Supreme Court and its powers was not published till 1774, and the date of the supposed forgery was in 1770: That the law which rendered forgery capital did not extend to India, as no English statute included the colonies, unless where it was expressly stated in the law: That Nuncomar, as a native Indian, for a crime committed against another Indian, not an Englishman, or even a European, was amenable to the native, not the English tribunals: That the evidence adduced was not sufficient to warrant condemnation: And whereas the state in which the prisoner was placed, with regard to a man of so much power as the Governor-General, should have suggested to the Judge peculiar circumspection and tenderness, that there was every appearance of precipitation; and of a predetermination to find him guilty, and to cut him off. In the defence which was set up by Sir Elijah Impey, the Chief Judge, in his answer at the bar of the House of Commons on the 12th of December, 1787, he admitted that a native inhabitant of the provinces at large was not amenable to the English laws, or to the English tribunals: and it was not as such, he affirmed, that Nuncomar was tried. But he maintained that a native inhabitant of the English town of Calcutta, which was English property, which had long been governed by Englishmen, and English laws, was amenable to the English tribunals, and justly, because he made it his voluntary choice to live under their protection; and that it was in this capacity, namely, that of an inhabitant of Calcutta, that Nuncomar suffered the penalties of the English laws. If the competency of the jurisdiction was admitted, the question of evidence, where evidence was complicated and contradictory, could not admit of any very clear and certain decision; and the Judge opposed the affirmation of its insufficiency by that of the contrary. He denied the doctrine that an English penal statute extended to the colonies, only when it was expressly stated. The allegation of precipitation and unfairness, still further of corruption, in the treatment of the accused, he not only denied with strong expressions of abhorrence, but by a specification of circumstances endeavoured to disprove. It was, however, affirmed that Nuncomar was not an inhabitant of Calcutta at the time when the offence was said to have been committed; but a prisoner brought and detained there by constraint. The Chief Justice, on the other hand, maintained that not only was no evidence to this fact exhibited on the trial, but evidence to the contrary, and that not opposed. It does indeed appear that an omission, contrary to the intent of the framers, in the Charter of Justice granted the Company in 1753, had afforded a pretext for that exten

1772.

sion of jurisdiction over the inhabitants of Calcutta, under which Impey shel- CHAP. II. tered himself. In establishing the civil court for the administration of the English laws, this charter expressly excepted "such suits as shall be between Indian natives, which shall be determined among themselves, unless both parties consent." In establishing the penal court, the reservation of the natives, having once been expressed, was not repeated; and of this opening the servants of the Company had availed themselves, whenever they chose, to extend over the natives the penalties of English law. That the intention of the charter was contrary appeared by its sanctioning a separate court, called the Phousdary, for the trial of all offences of the native inhabitants; a court which, under the intention of rendering natives as well as English amenable to the English criminal laws, would have been totally without a purpose. Of the evidence it may fairly be observed, that though the forgery was completely proved by the oaths of the witnesses to the prosecution, it was as completely disproved by the oaths of the witnesses to the defence; that there was no such difference in the character of the parties or their witnesses as to throw the balance greatly to either of the sides; and that the preponderance, if any, was too weak, to support an act of so much importance and delicacy, as the condemnation of Nuncomar. Even after the judgment, the case was not without a remedy; the execution might have been staid till the pleasure of the King was known, and a pardon might have been obtained. This too the Court absolutely refused; and proceeded with unrelenting determination to the execution of Nuncomar; who, on the 5th of August, with a tranquillity and firmness that never were surpassed, submitted to his fate, not only amid the tears and lamentations, but the cries and shrieks of an innumerable assemblage of his countrymen.

There was, perhaps, enough to save the authors of this transaction, on the rigid interpretation of naked law. But that all regard to decorum, to the character of the English government, to substantial justice, to the prevention of misrule, and the detection of ministerial crimes, was sacrificed to personal interests and personal passions, the impartial inquirer cannot hesitate to pronounce.t

Accordingly this jurisdiction had hitherto been exercised with great timidity; and the consent of the government was always asked before the sentence was executed. In one case, and but one, there had been a conviction for forgery, but the prisoner was not executed-he received a pardon. See the Seventh Report of the Committee of Secrecy, in 1773, p. 17.

† For the preceding charges against Mr. Hastings, and the proceedings of the Council, see the Eleventh Report of the Select Committee, in 1781, with its Appendix; Burke's Charges

Book V.

1776.

Among the regulations of the financial system, formed and adopted in 1772, under the authority of Mr. Hastings, the seventeenth article was exThe law gross-pressed in the following words; "That no Peshcar, Banyan, or other servant ly violated in favour of Mr. of whatever denomination, of the collector, or relation or dependant of any such Hastings's Banyan.

servant, be allowed to farm lands, nor directly or indirectly to hold a concern in any farm, nor to be security for any farmer; and if it shall appear, that the collector shall have countenanced, approved, or connived at a breach of this regulation, he shall stand ipso facto dismissed from his collectorship." These regulations had the advantage of being accompanied with a running commentary, in a corresponding column of the very page which contained the text of the law; the commentary proceeding from the same authority as the law, and exhibiting the reasons on which it was founded. The commentary on the article in question, stated, that," If the collector or any persons who partake of his authority, are permitted to be farmers of the country, no other persons will dare to be their competitors. Of course they will obtain the farms on their own terms. It is not fit that the servants of the Company should be dealers with their masters. The collectors are checks on the farmers. If they themselves turn farmers, what checks can be found for them? What security will the Company have for their property? Or where are the ryots to look for protection ? "* Notwithstanding this law, it appeared that Mr. Hastings's own Banyan had, in the year 1773, possessed, or was concerned in the farm of no. less than nineteen pergunnahs, or districts, in different parts of Bengal, the united rent-roll of which was 13,33,664 rupees; that in 1774, the rent-roll of the territory so farmed was 13,46,152 rupees; in 1775, 13,67,796 rupees; that for 1776, it was fixed at 13,88,346 rupees; and for 1777, the last year of the existing or quinquennial settlement, it was fixed it 14,11,885. It also appeared that, at the end of the second year, he was allowed to relinquish three of the farms, on which there was an increasing rent. This proceeding was severely condemned by the Directors; and Mr. Hastings himself, beyond affirming that

against Hastings, No. 8, and Hastings's Answer to the Eighth Charge, with the Minutes of Evidence on the Trial, p. 953-1001; and the Charges against Sir Elijah Impey, exhibited to the House of Commons by Sir Gilbert Elliot, in 1787, with the Speech of Impey, in reply to the first charge, printed, with an Appendix, by Stockdale, in 1788. For the execution and behaviour of Nuncomar, see a very interesting account, written by the sheriff who superintended, and printed in Dodsley's Annual Register for 1788, Historical part, p. 177.

Sixth Report of the Committee of Secrecy, in 1773; Bengal Consultations, 14th May, 1772, p. 18.